Charities left in limbo by ‘express consent’ farce

October 29, 2015 10:01 am

The charity sector has been thrown into turmoil after the privacy regulator admitted it was unable to give a definitive answer of how long “express consent” for telemarketing data lasts.
Data consent has been one of the major bones of contention to emerge from the recent uproar over charity marketing practices.
The issue is twofold; telemarketing data is governed by the Privacy & Electronic Communications Regulations, which state that firms must have “express consent” to contact potential customers or donors.
They already force companies to run their customer databases against the Telephone Preference Service before they run any marketing campaigns.
The use of direct mail data, however, falls under the Data Protection Act, which is currently under review as part of the draft EU Data Protection Regulation. Some EU member states want all marketing data to switch to an opt-in regime, although it is far from certain whether this will be passed into law.
Sir Stuart Etherington’s fundraising review recommended that charities should move to this now, even though it is not a legal requirement for any other sector.
Some direct marketing agencies branded Etherington’s demand both “dangerous” and “ludicrous”, while the ICO also criticised his plans for a Fundraising Preference Service – which would enable consumers to opt-out of receiving charity marketing all together – insisting he did not currently have the powers to enforce it.
Now it has emerged that the ICO is unable to confirm precisely how long “express consent” from existing supporters for charities to contact them by telephone will be valid. The regulator had been expected to announce that it would be valid for 12 months.
But an ICO spokeswoman told Third Sector: “There is no fixed time limit after which consent automatically expires. However, consent will not remain valid forever. How long consent remains valid will depend on the context – the question is whether it is still reasonable to treat it as an ongoing indication of the person’s current wishes.”
She added: “How long an organisation can continue to rely on consent will depend on the circumstances and the person’s expectations, which can be affected by the context in which consent was originally given and the nature of the relationship.”
When pressed by MPs about how long a valid consent should last for Information Commissioner Christopher Graham said: “It absolutely depends on what the service is and what the offer was. You cannot say hard and fast.”

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